If you wish to invest money in a business in the United States, you may be eligible for a green card under the fifth employment-based immigration preference category (EB-5). As will be explained in greater detail, you must (1) invest a qualifying amount of money, (2) in a new commercial enterprise, and (3) create at least ten jobs.
Amount of investment
Generally, you must invest $1,000,000 dollars to qualify for an EB-5 green card. If you are investing in a rural area with a population of less than 20,000, or in an area whose unemployment rate is 1.5 times the national average, you only need to invest $500,000 dollars.
Regardless of the investment amount, you will be required to prove that the money comes from a legal source, such as:
- Earnings from a business or investment
- Proceeds from the sale of property
- Gift or inheritance
- Secured loan
- Pension fund
- Legal settlement
Whether you are investing with cash or some other kind of property, it will be measured in U.S. dollars and at fair market value.
Any money or assets you invest must be at risk. If, for example, you have negotiated a guaranteed return or interest payment on your investment, USCIS will not consider it an investment for EB-5 purposes. Likewise, any funds that are merely set aside as reserves or to cover normal operating expenses will not be considered an investment, because the money is not intended for generating a return on the capital placed at risk.
The money you invest must be placed in escrow before you begin the immigration process, and it will become available for use once your green card has been approved.
New commercial enterprise
You must be investing in either a new business, or an existing business that was created, restructured, or substantially expanded after November 29, 1990.
Creating at least ten jobs
In general, you must prove that your investment will directly create at least ten jobs within two years. The two year period begins to run six months after USCIS grants your initial green card petition (Form I-526, see below). The jobs must be full time (35 hours per week or more) and must last at least two years. You may switch employees during that time, but the position itself must last for the two-year period.
Merely sustaining existing jobs is not sufficient, unless you can prove that you are investing in a troubled business that has sustained losses of at least 20% for one or two years.
The workers themselves must be U.S. citizens, lawful permanent residents, or other immigrants with work authorization. People who would not qualify as employees for this requirement are immigrants without lawful immigration status, non-immigrant visa holders, the investor in question, and the investor’s family.
The regional center program
In 1992, Congress created the regional center program to encourage foreign nationals to invest in the United States. It was merely a way of acknowledging that foreign investors who do not yet have immigration status in the United States are not always in the best position to evaluate market conditions and develop an appropriate business plan. So, the regional center program allows foreign investors to qualify for an EB-5 green card by investing through companies in the United States — known as EB-5 regional centers — that are already in the business of promoting economic growth.
People who invest through regional centers must still meet the basic requirements discussed above, but the job-creation requirement is relaxed, in the sense that you may now take into account jobs that were indirectly created through your investment. Regional centers must obtain approval from USCIS to operate, and must provide updated information each year on whether they continue to promote economic growth. The regional center program is set to expire on September 30, 2015, unless Congress reauthorizes it.
The EB-5 immigration process
Aside from the legal requirements for an EB-5 green card identified above, the immigration process consists of three steps.
File an I-526 immigrant visa petition. This is where you demonstrate that you satisfy all of the EB-5 requirements. When the petition is approved, you will receive a priority date, and you must consult the Department of State Visa Bulletin and wait for an immigrant visa to become available.
Once your priority date is current and an immigrant visa is immediately available, you must file an I-485 application for adjustment of status or undergo consular processing if you are outside of the United States. At this stage, you merely need to show that you are admissible to the United States. When your application is granted, you become a conditional resident. That status is only valid for two years, so the next step is critical.
After you have been a conditional resident for one year and nine months, you may now file an I-826 petition to remove the conditions attached to your residency and become a lawful permanent resident. At this stage, you must prove that you have satisfied the job-creation requirement discussed above.
After five years of being a permanent resident, you may apply for U.S. citizenship.
If you are interesting in obtaining a green card by investing in a business in the United States, contact me today.
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